EXHIBIT C
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT (the "Agreement"), dated as of June 17, 2009 by
and among The Xxxxxxx X. Xxxxxx Family Limited Partnership, a Nevada limited
partnership (the "Family LP"), Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, and Xxxxx
Xxxxxx (each such person and the Family LP, a "Seller" and together the
"Sellers"), and Harbinger Capital Partners Master Fund I, Ltd., Global
Opportunities Breakaway Ltd. and Harbinger Capital Partners Special Situations
Fund, L.P. (each, an "Investor" and together the "Investors").
RECITALS:
The Sellers own the number of shares of common stock, par value $0.01
per share ("Company Shares"), of Xxxxxx Corporation, a Nevada corporation (the
"Company") set forth on Schedule I, which shares constitute approximately
51.300% of the issued and outstanding Company Shares.
The Sellers own the number of shares of common stock, par value $0.01
per share ("Xxx.xxx Shares"), of Xxx.xxx Corporation, a Nevada corporation
("Xxx.xxx") set forth on Schedule I, which shares constitute approximately 1.5%
of the issued and outstanding Xxx.xxx Shares.
The Investors desire to purchase, and the Sellers desire to sell, upon
the terms and conditions set forth herein, all of the Company Shares and all of
the Xxx.Xxx Shares owned by the Sellers.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sale of Shares. Subject to the satisfaction of
the conditions set forth in Sections 5.1 and 5.2 (or the waiver thereof by the
party entitled to waive that condition), the Sellers shall sell to the
Investors, and the Investors shall purchase from the Sellers on the Closing Date
(as defined below), the Company Shares and the Xxx.xxx Shares set forth opposite
each Seller's name on Schedule I (the "Closing").
Section 1.2 Purchase Price. The purchase price for the Company Shares
shall be $7.50 per Company Share and the purchase price for the all of the
Xxx.xxx Shares shall be $2.00 in the aggregate (the "Purchase Price"). At the
Closing, each Investor shall pay the portion of the Purchase Price set forth
opposite such Investor's name on Schedule II and immediately following the
Closing shall be the owner and holder of record of the number of Company Shares
and Xxx.xxx Shares set forth opposite each Investor's name on Schedule II.
Section 1.3 Form of Payment. At the Closing, in exchange for the
Company Shares and Xxx.xxx Shares set forth on Schedule I, each Investor shall
pay the portion of the Purchase Price opposite its name on Schedule II to the
Sellers in the amount set forth opposite each Seller's name on Schedule I by
wire transfer of immediately available funds into the account or accounts
designated on Schedule I.
ARTICLE 2
CLOSING
Section 2.1 Closing Date. The date and time of the Closing (the
"Closing Date") shall be 10:00 a.m., New York City Time, at the offices of Xxxx
Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (or at such other time or place
as the parties may designate in writing) on that date that is two business days
following the satisfaction or waiver of each condition to the Closing set forth
in Sections 5.1 and 5.2 (other than those conditions that may be satisfied only
by a delivery at or action to be taken at the Closing).
Section 2.2 Items To Be Delivered by the Sellers. At the Closing, and
subject to the terms and conditions contained herein, the Sellers shall deliver
(i) to the Investors one or more share certificates representing the Company
Shares and Xxx.xxx Shares to be purchased and sold hereunder, which are held in
certificated form, in each case accompanied by a duly endorsed stock power in
blank or other appropriate instrument of transfer (duly endorsed and otherwise
in form sufficient for transfer and reasonably satisfactory to each Investor)
and (ii) cause to be issued to the Investors confirmation of book entry transfer
of such Company Shares and Xxx.xxx Shares as are held for any Seller's benefit
in a Depository Trust Company account into such Depository Trust Company as may
be designated by the Investors, as well as deliver each of the other items
described in Section 5.1.
Section 2.3 Items to be Delivered by the Investors. At the Closing, and
subject to the terms and conditions contained herein, each Investor shall
deliver to the Sellers the Purchase Price set forth opposite such Investor's
name on Schedule II, and each of the other items described in Section 5.2.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Family LP hereby represents and warrants to the Investors, and each
Seller, individually as to itself and not jointly, hereby represents and
warrants to the Investors, each as of the date hereof and the Closing Date, as
follows:
Section 3.1 Ownership of Company Shares and Xxx.xxx Shares. Each Seller
is the sole record and beneficial owner of, and has marketable valid title to
the Company Shares and Xxx.xxx Shares set forth opposite such Seller's name on
Schedule I and all such Company Shares and Xxx.xxx Shares are held free and
clear of any and all claims, liens, security interests and other encumbrances of
any nature and free and clear of any claim by any person to or against such
shares (together, "Encumbrances"), other than the Encumbrance of the
Shareholders' Agreement dated as of May 30, 1997 (as amended, the "Shareholders'
Agreement), by Xxxxxxx X. Xxxxxx and Family LP in favor of the Company. A true
and complete copy of the Shareholders' Agreement has been made available to the
Investors. The Company Shares and Xxx.xxx Shares constitute all of the shares of
capital stock of the Company and Xxx.xxx owned by any Seller. After giving
effect to the transactions contemplated hereunder, no Seller has any options,
warrants or other rights to acquire any capital stock of either the Company or
Xxx.xxx. Each Seller has, and as of the Closing, shall have, the full right,
power and authority to sell, assign, transfer and convey the Company Shares and
Xxx.xxx Shares to the Investors as provided herein. As of the Closing, each
Seller shall transfer all of its right, title and interest in and to the Company
Shares and Xxx.xxx Shares to the Investors free and clear of any Encumbrance.
Section 3.2 Authorization, Validity and Enforceability. This Agreement
and the transactions of the Sellers contemplated hereby have been duly
authorized by each Seller. This Agreement has been duly executed and delivered
by each Seller and constitutes the valid and binding obligation of each Seller,
enforceable against each Seller in accordance with its terms except to the
extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
The execution, delivery and performance of this Agreement by the Sellers will
not violate or result in a default under any provision of any commitment,
agreement or instrument to which any Seller is a party or by which any Seller is
bound and will not contravene any law (including common law), rule or regulation
of any administrative agency or governmental or regulatory body ("Governmental
Authority"), or any order, writ, injunction or decree of any court or
Governmental Authority applicable to any Seller.
Section 3.3 Litigation; Approvals. There are no proceedings pending or,
to the knowledge of any Seller, threatened, and there is no order, writ,
judgment or decree affecting any Seller which, if adversely determined, would
reasonably be expected to have a material adverse effect on the transactions
contemplated hereby. No approval by or filing with any Governmental Authority or
other person is required for any Seller to enter into or perform this Agreement,
except for such as have been received or made and except for any filings under
Schedule 13D or Section 16 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as Sellers may be required to make in connection with this
Agreement and the transactions contemplated hereby. The foregoing
notwithstanding, the Investors acknowledge that the Sellers and Investors have
jointly determined that the transactions contemplated hereby do not require that
any party make filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), and Sellers make no representation or warranty
with respect to the applicability of the HSR Act.
Section 3.4 Capitalization. Based solely on the Lists of Shareholders
from the Company's and Xxx.xxx's respective transfer agents, dated as of the
date hereof, a copies of which are annexed hereto as Schedule 3.4, the Sellers
own approximately 51.300% of the issued and outstanding Company Shares and
approximately 1.5% of the issued and outstanding Xxx.xxx Shares. Since March 31,
2009, there has been no change to the Company's or its subsidiaries' authorized
capital stock and no capital stock or rights exchangeable or convertible into,
or rights to acquire any, shares of capital stock of the Company or its
subsidiaries have been issued.
Section 3.5 Exchange Act Documents. To the actual knowledge of the
Sellers, as of their respective dates, none of the Company's and Xxx.xxx's
Annual Reports on Form 10-K for the fiscal year ended December 31, 2008, the
Company's and Xxx.xxx's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2009, the Company's Proxy Statement on Schedule 14A for the
Annual Meeting of Stockholders dated April 14, 2009 and Xxx.xxx's Information
Statement on Schedule 14C for the Annual Meeting of Stockholders dated April 14,
2009, and the Company's and Xxx.xxx's Current Reports on Form 8-K, since January
1, 2009 (collectively, the "Exchange Act Documents"), at the time they were
filed with the SEC, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
Section 3.6 No Intermediary; No Payments to Sellers. (1) Other than
pursuant to the letter agreement, dated June 17, 2009 (the "Jefferies Engagement
Letter"), among Family LP, an affiliate of the Investors and Xxxxxxxxx &
Company, Inc. or one of its designated affiliates, there is no investment
banker, broker, finder or other intermediary who might be entitled to any fee or
commission upon consummation of the transactions contemplated hereby based upon
arrangements made by or on behalf of any Seller, the Company or Xxx.xxx. Any
such fee or commission (other than those required to be paid by the Investors in
accordance with the Jefferies Engagement Letter), shall be the sole
responsibility of the Sellers and shall be paid in full by the Sellers.
(b) Other than (i) the Purchase Price, (ii) compensation in the
ordinary course consistent with past practice for services rendered through the
effective date of said termination and/or resignation, and (iii) other benefits
that have accrued to Sellers in the ordinary course consistent with past
practice under the Xxxxxx Corporation Pension Plan and the 401(k) Plan and which
are described on Schedule 3.6(b), no Seller, no immediate family member,
affiliate or associate (as each such term is defined in the Exchange Act) of any
Seller is entitled to any payment whether for severance, defined benefit, change
of control payment or otherwise, arising from or relating to the purchase and
sale of the Company Shares and Xxx.xxx Shares or the resignation by such Seller
or other person as a director, officer or other capacity of the Company or
Xxx.xxx.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF INVESTORS
Each Investor, individually as to itself and not jointly, represents
and warrants to Sellers as of the date hereof and the Closing Date as follows:
Section 4.1 Validity and Enforceability. This Agreement and the
transactions of the Investors contemplated hereby have been duly authorized by
each Investor. This Agreement has been duly executed and delivered by each
Investor and constitutes the valid and binding obligation of each Investor,
enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement by such Investor will not violate or result in a
default under any provisions of any commitment, agreement or instrument to which
such Investor is a party or by which such Investor is bound, and will not
contravene any law (including common law), rule or regulation of any
Governmental Authority or any order, writ, injunction or decree of any court or
governmental Authority applicable to such Investor.
Section 4.2 Litigation; Approvals. There are no proceedings pending or
threatened, and there is no order, writ, judgment or decree affecting such
Investor, which, if adversely determined, would have a material adverse effect
on the transactions contemplated hereby. No approval by or filing with any
Governmental Authority or other party is required for such Investor to enter
into or perform this Agreement, except for such as have been received or made
and except for any filing on Schedule 13D or Section 16 under the Exchange Act
as the Investors may be required to make in connection with the transactions
contemplated hereby. The foregoing notwithstanding, the Sellers acknowledge that
the Sellers and Investors have jointly determined that the transactions
contemplated hereby do not require that any party make filings under the HSR
Act, and Investors make no representation or warranty with respect to the
applicability of the HSR Act.
Section 4.3 Certain Securities Law Matters. Each Investor is an
"accredited investor" as defined in Rule 501(a) of Regulation D promulgated
pursuant to the Securities Act. Each Investor has substantial experience in
evaluating and investing in securities in companies similar to the Company and
Xxx.xxx so that such Investor is capable of evaluating the merits and risks of
such Investor's investment in the Company and Xxx.xxx and has the capacity to
protect such Investor's own interests. Each Investor is acquiring the Company
Shares and Xxx.xxx Shares being purchased by such Investor for investment for
such Investor's own account and not with the view to any public distribution
thereof or with any intention of disposing thereof in a manner that would
violate the registration requirements of the Securities Act; provided, however,
that by making the representations herein, no Investor is required to hold any
of the Company Shares and Xxx.xxx Shares being purchased by it for any minimum
or other specific term and reserves the right to dispose of the Company Shares
and Xxx.xxx Shares being purchased by it at any time in accordance with or
pursuant to a registration statement or an exemption under the Securities Act.
Each Investor understands that the offer and sale of the Company Shares and
Xxx.xxx Shares have not been, and will not be, registered under applicable
Federal or state securities laws.
Section 4.4 No Reliance. Each Investor acknowledges and agrees that,
in negotiating and entering into this Agreement, (i) it has not relied on any
representations made by the Sellers, the Company, Xxx.xxx, or any director,
officer, employee, investment banker, legal counsel or other representative or
agent thereof other than those of the Sellers expressly set forth herein, (ii)
it has been afforded the opportunity to do a due diligence review of the
business and affairs of the Company and Xxx.xxx, including to ask such questions
of the Company and Xxx.xxx, as it deems appropriate and material to the
transactions contemplated hereby and that its requests for information and
questions have been addressed to its satisfaction, and (iii) it has not relied
on the Sellers, the Company, Xxx.xxx or any director, officer, employee,
investment banker, legal counsel or other representative or agent thereof with
respect to the sufficiency of its due diligence or the information provided to
it and has relied on its own expertise and judgment in deciding the sufficiency
thereof. The Investors understand and acknowledge that the Sellers have received
material non-public information regarding the Company, Company Shares, Xxx.xxx
and Xxx.xxx Shares. Each Investor hereby represents and warrants that it is
financially sophisticated with respect to the Company, Company Shares, Xxx.xxx
and Xxx.xxx Shares; it is capable of evaluating the risks associated with a
transaction involving the Company, Company Shares, Xxx.xxx and Xxx.xxx Shares,
including the risk of transacting on the basis of information that may be
materially different from the information available to the Sellers, and that it
is capable of sustaining any loss that may result from engaging in such a
transaction on such basis without material injury. In light of the foregoing,
each Investor hereby waives any and all claims (including, without limitation,
any and all claims under any applicable securities law) it may have or may
hereafter acquire against the Sellers relating to any failure by the Sellers to
disclose to the Investors in connection with the Investors' purchase of the
Company Shares and Xxx.xxx Shares pursuant hereto any information which may be
considered to be material non-public information in respect of the Company,
Company Shares, Xxx.xxx and Xxx.xxx Shares.
Section 4.5 No Intermediary. Other than pursuant to the Jefferies
Engagement Letter, there is no investment banker, broker, finder or other
intermediary who might be entitled to any fee or commission upon consummation of
the transactions contemplated by this Agreement based upon arrangements made by
or on behalf of any Investor.
ARTICLE 5
CONDITIONS TO CLOSING
Section 5.1 Investors' Conditions. The obligation of the Investors
hereunder to purchase the Company Shares and Xxx.xxx Shares at the Closing is
subject to the satisfaction, at or before the Closing Date, of the following
conditions, provided that these conditions are for the Investors' sole benefit
and may be waived by the Investors at any time in their sole discretion by
providing the Sellers with prior written notice thereof:
5.1.1 Representations and Warranties. Except as otherwise
contemplated or permitted hereby, (a) the representations and
warranties of the Sellers contained in this Agreement or in any
certificate or document to be delivered to the Investors pursuant
hereto shall be deemed to have been made again at and as of the Closing
Date and shall be true and correct in all material respects as of such
date, and (b) each of the Sellers shall have performed and complied in
all material respects with all agreements and conditions required by
this Agreement to be performed or complied with by the Sellers prior to
or on the Closing Date, including but not limited to the requirements
of each Seller to deliver all of the Company Shares and Xxx.xxx Shares
set forth on Schedule I to the Investors.
5.1.2 No Actions. No action, suit or proceeding by any court
or Governmental Authority shall be pending, no investigation by any
Governmental Authority shall have been commenced and no action, suit or
proceeding by any Governmental Authority shall have been threatened
against any of the Investors, the Sellers, the Company or Xxx.xxx or
any of their respective principals, trustees, officers or directors
seeking to restrain, prevent or change the transactions contemplated
hereby or questioning the legality or validity of any such transactions
or seeking damages in connection with any such transactions.
5.1.3 Consents. All consents, approvals and authorizations of
Governmental Authority and all filings with and notifications of
Governmental Authority or other entities which regulate the business of
the Company and Xxx.xxx necessary to the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
shall have been obtained or effected.
5.1.4 No Material Adverse Change. There shall have been no
material adverse change since the date hereof in the business, assets,
financial condition, results of operations or prospects of the Company
or Xxx.xxx, including that nothing has occurred (other than the
transactions contemplated hereunder) since the date of Company's and
Xxx.xxx's most recent Exchange Act Documents that would be required to
be disclosed in such Exchange Act Documents and no agreement entered
into (other than this Agreement) that would be required to be filed as
an exhibit to any Exchange Act Documents.
5.1.5 Election of Directors; Resignations. Xxxxxx X. Xxxxxxx
and Xxxxxxx X. Xxxxx shall have been elected as members of the Board of
Directors of the Company (as Class II directors). The number of members
of the boards of directors of the Company and Xxx.xxx shall remain at
seven and one, respectively. The resignations of Xxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx contemplated by
Section 6.3 shall have occurred.
5.1.6 Capitalization. Sellers shall have delivered to the
Investors a record list of shareholders, prepared by the transfer agent
of the Company and dated as of the date of Closing (the "Shareholder
List"), which Shareholder List confirms that the Company Shares and
Xxx.xxx Shares set forth on Schedule I represent the same percentage of
issued and outstanding Company Shares (subject only to the exercise of
options by persons other than the Sellers) on the Closing Date as such
shares represent on the date hereof. Since March 31, 2009, there shall
have been no change to the Company's or its subsidiaries' authorized
capital stock and no capital stock or rights exchangeable or
convertible into, or rights to acquire any, shares of capital stock of
the Company or its subsidiaries shall have been issued.
5.1.7 Sale of Shares Held by Other Xxxxxx Family Members. The
persons listed on Schedule III shall have entered into one or more
binding agreements with the Investors, in form and substance reasonably
acceptable to each party thereto, providing for the sale of the Company
Shares set forth on Schedule III at a price per Company Share equal to
the Purchase Price which purchase and sale shall occur concurrently
with the Closing.
Section 5.2 Sellers' Conditions. The obligation of the Sellers
hereunder to sell to the Investors the Company Shares and Xxx.xxx Shares at the
Closing is subject to the satisfaction, at or before the Closing Date, of each
of the following conditions, provided that these conditions are for the Sellers'
sole benefit and may be waived by the Sellers at any time in their sole
discretion by providing the Investors with prior written notice thereof:
5.2.1 Representations and Warranties. Except as otherwise
contemplated or permitted hereby, (a) the representations and
warranties of each of the Investors contained in this Agreement or in
any certificate or document to be delivered to the Sellers by each of
the Investors pursuant hereto shall be deemed to have been made again
at and as of the Closing Date and shall be true and correct in all
material respects as of such date, (b) each of the Investors shall have
performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with
by the Investors prior to or on the Closing Date, and (c) the Purchase
Price shall have been delivered to the Sellers.
5.2.2 No Actions. No action, suit or proceeding by any court
or governmental Authority shall be pending, no investigation by any
Governmental Authority shall have been commenced and no action, suit or
proceeding by any Governmental Authority shall have been threatened
against the Sellers, the Company, Xxx.xxx or the Investors or any of
their respective general partners, principals, trustees, officers or
directors seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or validity of any such
transactions or seeking damages in connection with any such
transactions.
5.2.3 Consents. All consents, approvals and authorizations of
Governmental Authorities and all filings with and notifications of
Governmental Authorities or other entities which regulate the
businesses of the Company and Xxx.xxx necessary to the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby shall have been obtained or effected.
ARTICLE 6
COVENANTS
Section 6.1 Efforts. Between the date of this Agreement and the Closing
Date, Family LP will, and will cause Sellers to, and the Investors will use
their respective reasonable best efforts to cause the conditions in Section 5.1
and 5.2, respectively, to be satisfied, including but not limited to causing the
election to the boards of directors of the nominees of the Investors named in
Section 5.1.5 as promptly as practicable.
Section 6.2 Proxies. Each Seller hereby grants to Harbinger Capital
Partners LLC (the "Investor Representative") a proxy to vote all Company Shares
and Xxx.xxx Shares owned by each Seller for the election of three (3)
individuals to the Board of Directors of the Company, one of whom shall be Xxxxx
X. Xxxxxx and two (2) of whom shall be as directed by the Investor
Representative. Each Seller agrees that this proxy shall be irrevocable during
the term of this Agreement and is coupled with an interest. Each Seller will
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and no Seller shall take any action which
is inconsistent with the proxy granted hereby. Each Seller hereby revokes any
proxy previously granted by such Seller with respect to any Company Shares or
Xxx.xxx Shares.
Section 6.3 Resignations. Concurrently with the Closing, the Sellers
shall use their best efforts to cause each of Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx and each Seller and every person who is an
immediate family member of a Seller or who is an affiliate or associate of a
Seller who is an officer or director of the Company or Xxx.xxx shall have
resigned from each position held by such person without any continuing benefits
(other than compensation for services rendered through the effective date of
said resignation and benefits that have accrued under the Xxxxxx Corporation
Pension Plan and the Company's 401(k) Plan), severance obligations or other
similar obligations or liabilities of the Company or Xxx.xxx. Notwithstanding
the foregoing, all options to purchase Company Shares or Xxx.xxx Shares held by
any such person (other than Xxxxx Xxxxxx, who shall terminate his options, if
any, in the Company and Xxx.xxx without cost) shall remain outstanding.
Section 6.4 Transfer Restrictions. Each Seller agrees not to (a) sell,
transfer, pledge, encumber, assign or otherwise dispose of or hypothecate
(including by gift or by contribution or distribution to any trust or similar
instrument (collectively, "Transfer"), or enter into any contract, option or
other arrangement or understanding (including any profit-sharing arrangement)
with respect to the Transfer of any of such Seller's Company Shares or Xxx.xxx
Shares other than pursuant to the terms hereof, (b) enter into any voting
arrangement or understanding with respect to such Seller's Company Shares or
Xxx.xxx Shares (other than this Agreement), whether by proxy, voting agreement
or otherwise, or (c) take any action that could make any of its representations
or warranties contained herein untrue or incorrect in any material respect or
would have the effect of preventing, delaying or disabling such Seller from
performing any of its obligations hereunder.
Section 6.5 Additional Documents. The parties hereto will, at any time
after the date hereof, sign, execute and deliver, or cause others so to do, all
such powers of attorney, deeds, assignments, documents and instruments (in form
and substance reasonably acceptable to the parties hereto), and do or cause to
be done all such other acts and deeds as may be necessary or proper to carry out
the transactions contemplated by this Agreement.
Section 6.6 Covenants.
(a) From the date hereof until the Closing, the Sellers shall
not, and shall cause the Company not to, (i) operate or take any action
(corporate or otherwise) of the Company or its subsidiaries outside the ordinary
course of business; (ii) declare, pay or set aside funds for the payment of any
dividends or any other distribution or payment in respect of the capital stock
of the Company and its subsidiaries; (iii) change the Company's or its
subsidiaries' authorized capital stock or issue any capital stock or rights
exchangeable or convertible into, or rights to acquire any, shares of capital
stock of the Company or its subsidiaries; (iv) amend the Articles of
Incorporation or bylaws of the Company or its subsidiaries; (v) grant any
registration rights of the Company or its subsidiaries; (vi) purchase, redeem,
retire or otherwise acquire any shares of any capital stock of the Company or
its subsidiaries; (vii) enter into or amend the terms of any transactions
between the Company or any of its subsidiaries and any immediate family member,
affiliate or associate of the Sellers; (viii) sell, lease, or otherwise dispose
of any asset or property of the Company or its subsidiaries; or (ix) enter into
any loan, mortgage or pledge, or impose any lien or other encumbrance on any
asset or property of any Company or its subsidiaries or (x) enter into any
agreement or commitment to do any of the foregoing. Without limiting the
foregoing, from the date hereof until Closing, no Seller shall (1) vote on or
consent to any matter in his or its capacity as a stockholder of the Company or
Xxx.xxx except as specifically contemplated by Section 6.2, or (2) take any
action as a member of the board of directors of the Company or Xxx.xxx other
thanan action (x) that will not result in a failure of any condition set forth
in Section 5.1 of this Agreement and (y) such Seller is advised by counsel he or
she must take such action or be in breach of his or her fiduciary duty as a
director.
(b) Within two business days of the date hereof, Sellers shall
make such filings as are required of them under the Exchange Act, including but
not limited to making amendments to the filings on Schedule 13D and under
Section 16 of the Exchange Act of each Seller, in each case, describing the
terms and conditions of this Agreement required thereby or otherwise necessary
to permit the Company to prepare and mail its proxy materials as contemplated
below. Sellers shall cause the Company to (i) reconvene its adjourned meeting of
shareholders, and (ii) prepare and mail a notice of meeting and revised proxy
materials, in each case, in a manner that provides for the election of directors
of the Company as contemplated by this Agreement. The Sellers shall use their
best efforts to cause the Company to (x) take such actions as promptly as
practicable and, in any event, to cause the Company to mail such notice of
meeting and proxy materials within four business days of the date hereof and (y)
hold such meeting of shareholders within ten business days following such
mailing. The Sellers shall provide the Investor Representative a reasonable
opportunity to review and comment on the amendments to its filings on Schedule
13D and under Section 16 prior to the filing thereof and shall endeavor to give
the Investor Representative an opportunity to review and comment on the
Company's proxy materials described above. The Sellers shall reasonably consider
revising such documents to incorporate the comments of the Investor
Representative.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Survival of Agreements. All the representations, warranties
and covenants made herein shall survive the execution and delivery of this
Agreement and the sale and delivery of the Company Shares and Xxx.xxx Shares
pursuant hereto; provided, however, that the representation and warranty set
forth in Section 3.5 shall only survive for a period of 120 days from and after
the Closing Date.
Section 7.2 Expenses. Each party hereto shall pay its own expenses in
connection with the transactions contemplated hereby and the expenses of
Jefferies & Company, Inc. shall be paid pursuant to the Jefferies Engagement
Letter.
Section 7.3 Notices. All notices, requests, consents, or other
communication hereunder shall be in writing and shall be delivered personally or
reputable overnight courier, in the case of the Investors, to c/o Harbinger
Capital Partners LLC, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: General Counsel, with a copy to Xxxx Xxxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxx Xxxx Xxxxxx and Xxxxx Xxxxxx, and, in the
case of the Sellers, to c/o Xxxxxxx X. Xxxxxx Family Limited Partnership, 0
Xxxxxx Xxxx, Xxxx Xxxxx, XX 00000, Attention: Xxxxx X. Xxxxxx, with a copy to
Xxxxxx Beach PLLC, 00 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxxx.
Section 7.4 Captions and Section Headings. As used herein, captions and
section headings are for convenience only and are not a part of this Agreement
and shall not be used in construing it.
Section 7.5 Entire Agreement. This Agreement and the other documents
delivered pursuant hereto and thereto, or incorporated by reference herein,
contain the entire agreement between the parties hereto concerning the
transactions contemplated herein and supersede all prior agreements or
understandings between the parties hereto relating to the subject matter hereof.
Section 7.6 Termination; Amendment. This Agreement may be specifically
enforced by either party if such party is not in material breach of this
Agreement. This Agreement may be terminated at any time after December 16, 2009
by either party (acting through the Investor Representative or the Family LP, as
applicable), by notice given to the other party, if the Closing has not occurred
by December 16, 2009 unless failure to close is by reason of the breach of this
Agreement by the party seeking to terminate, and upon such termination neither
the Investors nor the Sellers shall have any obligation or liability hereunder
(except for damages arising out of any such breach). This Agreement may be
amended, supplemented or interpreted at any time, but only by a written
agreement executed by the parties hereto. For purposes of this Section 7.6, the
"parties" shall mean the Investors (individually and together), on the one hand,
and the Sellers (individually and together) on the other.
Section 7.7 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 7.8 Severability. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
Section 7.9 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns. No assignment of this Agreement or of any rights or obligations
hereunder may be made by either the Sellers or the Investors, directly or
indirectly (by operation of law or otherwise), without the prior written consent
of the other parties hereto, except that any Investor may assign its rights but
not its obligations to an affiliate thereof.
Section 7.10 Governing Law. This Agreement, and all matters arising
directly or indirectly hereunder, shall be governed by the laws of the State of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in the State of New York, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the Investors and the Sellers have duly executed
this Share Purchase Agreement as of the date first written above.
SELLERS:
The Xxxxxxx X. Xxxxxx Family Limited Partnership
By: Xxxxx Xxxxxx, President
-------------------------------
/s/XXXXX XXXXXX
/s/XXXXX XXXXXX AS POWER OF ATTORNEY FOR
XXXXXXX XXXXXX
------------------------------------------------
Xxxxxxx X. Xxxxxx
/s/XXXXX X. XXXXXX
-----------------------------------
Xxxxx X. Xxxxxx
/s/XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx
INVESTORS:
HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD.
By: Harbinger Capital Partners LLC, its investment
manager
By: /s/XXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS
FUND, L.P.
By: Harbinger Capital Partners Special Situations
GP, LLC, its general partner
By: /s/XXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
GLOBAL OPPORTUNITIES BREAKAWAY LTD.
By: Global Opportunities Breakaway Management,
L.P., its investment manager
By: /s/XXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
SCHEDULE I
SELLERS, SHARE OWNERSHIP,
ALLOCATION OF PROCEEDS AND ACCOUNT INFORMATION
Allocation
Number of Allocation of Number of of Proceeds Total
Company Proceeds of Xxx.xxx of Xxx.xxx Allocation Account
Name of Seller Shares Company Shares Shares Shares of Proceeds Information
-------------- ------ -------------- ------ ------ ----------- -----------
The Xxxxxxx X. 9,813,112 $73,598,340.00 707,907 $1.00 $73,598,341.00
Xxxxxx Family
Limited Partnership
Xxxxx Xxxxxx 6,400 $48,000.00 0 $0 $48,000.00
Xxxxxxx Xxxxxx 28,052 $210,390.00 0 $0 $210,390.00
Xxxxx Xxxxxx 41,120 $308,400.00 50,000 $1.00 $308,401.00
------------------------------------------------------------------------------------------------------------
Total 9,888,684 $74,165,130.00 757,907 $2.00 $74,165,132.00
SCHEDULE II
INVESTORS, PURCHASED SHARES AND
ALLOCATION OF PURCHASE PRICE
Purchase Purchase
Number of Price Number of Price
Company of Company Xxx.xxx of Xxx.xxx Total Purchase
Name of Investor Shares Shares Shares Shares Price
---------------- ------ ------ ------ ------ --------------
Harbinger Capital 3,296,228 $24,721,710 252,636 $0.67 $24,721,710.67
Partners Master Fund
I, Ltd.
Harbinger Capital 3,296,228 $24,721,710 252,636 $0.67 $24,721,710.67
Partners Special
Situations Fund, L.P.
Global Opportunities 3,296,228 $24,721,710 252,635 $0.66 $24,721,710.66
Breakaway Ltd.
---------------------------------------------------------------------------------------------
SCHEDULE III
SALE OF SHARES BY FAMILY MEMBERS
Allocation of Proceeds of
Name of Seller Number of Company Shares Company Shares
-------------- ------------------------ -------------------------
Xxxxx Xxxxxx 24,737 $185,527.50
Xxxxxx Xxxxxx 12,442 $93,315.00
Xxxx Xxxxxx 12,099 $90,742.50
Schedule 3.6(b)
---------------
Xxxxx Xxxxxx has accumulated a benefit under the Xxxxxx Corporation Pension
Plan. As of December 31, 2008, the present value of the accumulated benefit for
Xx. Xxxxxx under the Xxxxxx Corporation Pension Plan was $155,852.
